Chimanbhai I Patel, Mehsana V. The Dy. Comm. of Income tax Cir1(2), Ahmedabad

ITA 955/AHD/2009

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0525 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 05-03-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 30-03-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D C PATWARI
• Section: 153A; 68

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD , .!' # , $% $ & BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A. NO.955/AHD/2009 ( ' ' (' / ASSESSMENT YEAR : 2004-05) CHIMANBHAI I.PATEL 32, GIDC ESTATE PHASE-II DEDIYASAN, MEHSANA ' / VS. THE DCIT CENTRAL CIRCLE-1(2) AHMEDABAD ./ ./ PAN/GIR NO. : ABHPP 6210 D ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI VARTIK CHOKSHI / RESPONDENT BY : SHRI D.C. PATWARI, CIT-DR / DATE OF HEARING : 05/03/2013 !'# / DATE OF PRONOUNCEMENT : 15/3/13 $% / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE ARISING F ROM THE ORDER OF LD.CIT(A)-II, AHMEDABAD DATED 05/01/2009 PASSED F OR A.Y. 2004-05. THE GROUNDS RAISED ARE AS UNDER:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) SHOULD HAVE REALIZED THAT IT WAS NOT AT ALL A FIT C ASE FOR INVOKING THE PROVISIONS OF SECTION 153A FOR ANY OF THE YEARS INVOLVED. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) SHOULD HAVE APPRECIATED THAT NO INCRIMINATING MATER IAL OR ITA NO.955/AHD/ 2009 CHIMANBHAI I.PATEL VS. DCIT ASST.YEAR - 2004-05 - 2 - ANY UNDISCLOSED ASSET WAS FOUND AT ALL AND HENCE TH E ASSESSING OFFICER WAS NOT JUSTIFIED IN REOPENING TH E ASSESSMENTS OF THESE YEARS BY INVOKING THE PROVISIO NS OF SECTION 153A. 3. WITHOUT PREJUDICE, ON THE FACTS AND IN THE CIRCUMST ANCES OF THE CASE THE CIT(A) SHOULD HAVE REALIZED THAT SINCE NO INCRIMINATING MATERIAL WAS FOUND AT ALL AND NO UNDI SCLOSED ASSET HAD SURFACED THE ASSESSING OFFICER SHOULD HAV E NOT FRAMED THE ASSESSMENT ORDERS U/S.153A FOR ANY OF TH E YEARS. 4. WITHOUT PREJUDICE, ON THE FACTS AND IN THE CIRCUMST ANCES OF THE CASE THE CIT(A) SHOULD HAVE REALIZED THAT THE A SSESSING OFFICER WAS NOT JUSTIFIED IN EMBARKING UPON THE PRO CESSING AND SCRUTINY OF THE ASSESSMENT IN A FASHION WHICH W AS PERMISSIBLE IN A REGULAR ASSESSMENT U/S.143(3) BUT IN THIS PARTICULAR CASE IT WAS NOT PERMISSIBLE U/S.153A. 5. WITHOUT PREJUDICE, ON THE FACTS AND IN THE CIRCUMST ANCES OF THE CASE, THE CIT(A) HAS ERRED IN CONFIRMING THE AD DITION OF RS.2,85,000 FOR THE ALLEGED CASH CREDITS. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN NOT ACCEPTING THE ASSESSEES PLEA THAT IT WAS NOT AT ALL A FIT CASE FOR LEVY OF INTEREST U/S.234A, 23 4B AND 234C OF THE I.T.ACT. 2. AT THE OUTSET, LD.AR MR.VARTIK CHOKSHI HAS EXPR ESSED NOT TO PRESS GROUND NOS.1, 2, 3, 4 & 6, HENCE THESE GROUNDS ARE DISMISSED BEING NOT PRESSED. 3. THE ONLY GROUND THUS ARGUED IS GROUND NO.5-SUPRA . 3.1. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDI NG ASSESSMENT ORDER PASSED U/S.153A(B) R.W.S.143(3) OF THE IT ACT DATED 28.12.2006 WERE THAT A SEARCH WAS CONDUCTED ON VIMAL GROUP OF COMPA NIES AND IN CONSEQUENCE THEREOF THE ASSESSEE WAS SUBJECTED TO A SSESSMENT. IT WAS NOTED BY THE AO THAT THE ASSESSEE HAD MAINTAINED AN ACCOUNT WITH ITA NO.955/AHD/ 2009 CHIMANBHAI I.PATEL VS. DCIT ASST.YEAR - 2004-05 - 3 - CENTRAL BANK OF INDIA. ON VERIFICATION OF ACCOUNT, IT WAS FOUND THAT CERTAIN DEPOSITS WERE MADE IN THE SAID BANK ACCOUNT . IT WAS SUBMITTED BY THE ASSESSEE THAT CERTAIN AMOUNTS WERE RECEIVED FRO M FRIENDS AND RELATIVES AS FOLLOWS:- DATE AMOUNT (RS.) PERSON 13.8.2003 2,00,000/- SHRI LALBHAI ISHWARBHAI PATEL 12.8.2003 45,000/- SHRI KANUBHAI K.PATEL 12.8.2003 40,000/- SHRI RAKESHBHAI K.PATEL TOTAL 2,85,000/- 3.2. ACCORDING TO AO, THE ASSESSEE HAD FAILED TO PR ODUCE THE CREDITWORTHINESS AND THE GENUINENESS OF THE TRANSAC TION, HENCE INVOKED THE PROVISIONS OF SECTION 68 AND TAXED IN THE HANDS OF THE ASSESSEE. THE MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHO RITY. 4. THE LD.CIT(A) HAS PASSED A CRYPTIC ORDER AND HEL D THAT THE ASSESSEE HAD SIMPLY FURNISHED COPIES OF PROOF FOR HOLDING OF AGRICULTURAL LAND, BUT FAILED TO PLACE ON RECORD THE PROOF FOR AGRICULTURA L INCOME. IN HIS OPINION, ONLY HOLDING OF LAND DID NOT MEAN THAT THO SE PERSONS HAVE ACTUALLY EARNED AGRICULTURAL INCOME TO THAT EXTENT. BY ASSIGNING THESE REASONS, THE LD.CIT(A) HAS UPHELD THE ACTION OF THE AO. 5. FROM THE SIDE OF THE ASSESSEE, LD.AR MR.VARTIK C HOKSHI APPEARED. AS FAR AS THE LOAN RECEIVED FROM S/SHRI KANUBHAI PA TEL AND RAKESHBHAI PATEL WAS CONCERNED, OUR ATTENTION WAS DRAWN ON THE ACCOUNTS OF THE SAID TWO PARTIES THROUGH WHICH IT WAS DEMONSTRATED THAT THE RESPECTIVE AMOUNTS WERE RE-PAID WITHIN A SHORT SPAN OF ABOUT 1 5 DAYS. THE ASSESSEE ITA NO.955/AHD/ 2009 CHIMANBHAI I.PATEL VS. DCIT ASST.YEAR - 2004-05 - 4 - HAS PLACED ON RECORD THE BANK ACCOUNT OF MEHSANA UR BAN CO-OP.BANK LTD. TO ESTABLISH THAT THE RE-PAYMENT WAS MADE THR OUGH BANKING CHANNEL, HENCE THE MONEY WAS NOT USED BY THE ASSESSEE FOR A LONG PERIOD AND THAT MONEY IN FACT DID NOT BELONG TO THE ASSESSEE, THERE FORE OUT OF THE AMBITS OF THE DEEMING PROVISION OF SECTION 68 OF THE IT AC T. CONSIDERING THIS VITAL EVIDENCE AND ALSO CERTAIN CORROBORATIVE EVIDE NCES, SUCH AS, CONFIRMATIONS, ETC. WE HEREBY HOLD THAT THE AMOUNT OF RS.40,000/- FROM SHRI RAKESHBHAI PATEL AND THE AMOUNT OF RS.45,000/- FROM SHRI KANUBHAI PATEL WAS OUT OF THE AMBITS OF THE PROVISIONS OF SE CTION 68 OF THE ACT. WE HEREBY DIRECT TO DELETE THE ADDITION. 5.1. NEXT, THE ASSESSEE HAS RECEIVED AN AMOUNT OF R S.2 LACS FROM HIS BROTHER SHRI LALBHAI I. PATEL. THE IMPUGNED AMOUNT WAS ADVANCED THROUGH BANKING CHANNEL OF THE NAVNIRMAN CO-OP.BAN K LTD. THE EXPLANATION OF THE ASSESSEE IS THAT THE FAMILY OF T HE ASSESSEE IS HAVING A HUGE LAND HOLDING TOTALLING AROUND 5.14.90 HECTRES, I.E. ABOUT 12.5 ACRES. IN SUPPORT OF THE CULTIVATION, THE ASSESSEE HAS FUR NISHED FORM NO.12 ISSUED BY THE VILLAGE AUTHORITIES TO CONFIRM THAT B OTH KHARIFF AND RAVI AGRICULTURAL SEASONS WERE UTILIZED FOR THE CULTIVAT ION OF THE LAND. THE LD.AR HAS ALSO INFORMED THAT THE LAND IS AN IRRIGAT ED LAND. THE CROPS STATED ON FORM NO.12 ARE JOWAR, WHEAT, UDAD, ETC. IT HAS ALSO BEEN STATED THAT THE BROTHER OF THE ASSESSEE HAS CONFIRM ED THE SAID TRANSACTION OF RS.2 LACS. OUR ATTENTION HAS BEEN DRAWN ON THE CASE LAWS WHICH WERE CITED BEFORE LD.CIT(A), NAMELY ARAVALI TRADING CO. VS. ITO (8 DTR 199) AND ROHINI BUILDERS (76 TTJ 532) CONFIRMED BY GUJARAT HIGH COURT REPORTED AS 256 ITR 360. THE LEGAL PROPOSITION LAI D DOWN IN THESE ITA NO.955/AHD/ 2009 CHIMANBHAI I.PATEL VS. DCIT ASST.YEAR - 2004-05 - 5 - JUDGEMENTS AS ALSO CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE SPECIALLY WHEN THE AMOUNT IS SMALL AND NO ADVERSE EVIDENCE WAS COLLECTED BY THE REVENUE AGAINST THE ASSESSEE, WE HEREBY DIRECT TO DELETE THIS ADDITION. GROUND IS ALLOWED. 6. IN THE RESULT, ASSESSEES APPEAL IS ALLOW ED. SD/- SD/- ( &.'!( ')# ) ( ' ' * ) $ +, $ ( A. MOHAN ALANKAMONY ) ( MUKU L KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 15/ 03 /2013 -.., .,../ T.C. NAIR, SR. PS $* + ,-. /$.( / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / 01 2 / CONCERNED CIT 4. 2 () / THE CIT(A)-II, AHMEDABAD 5. 567 ,,01, 01#, ('$/$ / DR, ITAT, AHMEDABAD 6. 789 : / GUARD FILE. $*' / BY ORDER, 5 , //TRUE COPY// 0/ 1 ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION DATED 5.3.13 (DICTATION-PAD 10 PAGES ATTACHED) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 6.3.13 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S15.3.13 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 15.3.13 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER